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Appeal Sought For Remote DVR System

New York — A group of 11 industry and public interest groups have filed a brief in an appeal to overturn a recent lower-court decision last March that made cable TV multiple system operator Cablevision liable for copyright infringement if it proceeded to use a new digital video recording system that caches subscribers’ TV recordings at the cable head-end rather than on a resident hard drive.

Public Knowledge, a fair-use recording rights advocacy group and one of the organizations that joined in filing the brief supporting the appeal with the 2nd Circuit U.S. Court of Appeals, here, June 8, said, “Consumers should have the benefits of a new convenient way to record programs from a cable TV system.”

Public Knowledge said that if allowed to stand, the ruling “would establish an unprincipled legal bias against remote and network-based services.”

“Development of new technologies, such as remote data storage and remote computing applications would be chilled,” Public Knowledge said in a statement.

The groups argue that Cablevision system of storing recordings remotely, rather than on a device in a subscriber’s home, “performs the same functions as a more conventional set-top box.”

“Consumers would clearly be the losers if the law makes an illogical distinction between being able to record shows through a set-top box or through a cable network,” said Gigi B. Sohn, president of Public Knowledge. “Consumers want to press a couple of buttons on the remote and save a show, and shouldn’t have to worry about whether the show is being stored in a box on their TV sets or on a cable company’s computer.”

The groups also argued that the lower-court ruling, if left standing, would be a major change in copyright law because it would erode the protections of the landmark Universal Studios v. Betamax case from 1984 that allowed use of the video recorder. The brief argued that “providing consumers the means by which they implement their own choices is not grounds for a direct infringement action.”

“Libraries and educational institutions routinely provide and use the remote services that are threatened by the district court’s decision,” said Miriam Nisbet, legislative counsel with the American Library Association. “If the district court’s decision is upheld, libraries will not be able to serve their patrons in the most efficient and effective manner possible,” Nisbet added.

Also filing the brief with Public Knowledge were Center for Democracy and Technology, Electronic Frontier Foundation, NetCoalition, Broadband Service Providers Association, USTelecom, American Library Association, American Association of Law Libraries, Association of Research Libraries, Medical Library Association and Special Libraries Association.

In a related matter, Public Knowledge joined with eight other groups in sending a letter to the Federal Communications Commission to warn that the cable industry, working through its CableLabs organization, is creating standards for two-way cable operation that will limit innovation and reduce consumer choice.

The groups said that CableLabs’ proprietary “OpenCable Application Platform” (OCAP) standard is being used by cable companies to “give the cable industry undue control over the customer’s equipment.”

The letter asked for more opportunity for non-cable companies to create CableCARD devices allowing consumers more control over their two-way cable services.

While cable has offered new technologies that benefit consumers, “these technological innovations should not be used as a means to limit competition,” the letter said: “Right now, consumers who use third-party CableCARD devices rather than proprietary set-top boxes may be penalized and not able to use the full range of services they subscribe to.”

In order to comply with the 1996 Telecommunications Act, cable has to allow third-party manufacturers to make devices that are compatible with all of the video services offered by cable,” the groups told the Commission.

They recommended that the FCC issue for public comment a proposal made Nov. 7, 2006 by the Consumer Electronics Association and a group of companies that would make the use of cable’s proprietary operating standard optional and would open the standards-setting process.

Groups signing the letter are (in alphabetical order): Consumer Federation of America, Consumers Union, Electronic Frontier Foundation, Free Press, Knowledge Ecology International, Media Access Project, New America Foundation, Public Knowledge and U.S. Public Interest Research Group.